Dodging a frivolous lawsuit

Dodging a frivolous lawsuit

November 2009
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While many debate the effect that malpractice has on the overall cost of practicing medicine, there is no doubt that the threat of a lawsuit has an impact on a physician’s career satisfaction. This is particularly true for physicians subjected to frivolous suits.

Interestingly, a study in the May 11, 2006, New England Journal of Medicine found that the assumption that the malpractice system is burdened by frivolous litigation is “overblown.” Further, the study’s authors concluded that eliminating frivolous lawsuits would decrease direct system cost “by no more than 13 to 16 percent.” Finally, they found that claims that lacked merit were won by the plaintiff less than 25% of the time, and that payouts for meritless cases found in favor of the plaintiff were substantially less than payments for claims that involved verifiable injuries or errors.

All good news, I suppose, but not much of a consolation when that dreaded certified letter shows up at your door. Take the experience of a colleague of mine who was recently served after he arrived at a code blue to find another attending’s patient in asystole. Despite following standard ACLS protocols, he was named in the malpractice suit that followed.

Here’s my favorite line from the transcript of his deposition: “Although I believe myself to be an excellent physician, bringing back the dead is not a skill that I was taught in medical school.” Notwithstanding the fact that this nearly gave his attorney an MI, the outcome was a good one: In the end, the case against both my friend and the original attending (who was the real target all along) was dismissed.

Knock on wood, but I have been fortunate enough–if one can put it that way–to have been involved only in litigation that was patently (and maddeningly) frivolous. However, if I should ever err in such a way that results in patient harm, I would want there to be a system in place to award that patient for his or her physical, emotional and financial devastation, fairly and logically.

Perhaps a federal insurance fund could form the foundation for just such an equitable system. It might work like this: If a patient is injured, a panel of impartial physicians could decide on the merits of the case and award accordingly. Instead of paying professional liability insurance, physicians would pay into that federal fund each year. A similar system now exists in some states like Wisconsin and Indiana, where a state fund helps contain costs by paying victims who have large malpractice awards. (In Indiana, the voluntary pool covers medical liability claims above the $250,000 policy coverage limit, up to a $1.25 million state cap.) The idea of eliminating the middle person, which isn’t a new concept, is certainly a good one. Patients, not attorneys, need to be compensated for true medical errors.

I was inspired to write this by the receipt of good news: the frivolous lawsuit in which I was involved was recently dismissed. Fortunately for me, that suit was brought in Indiana, where a malpractice lawsuit must be filed with the department of insurance either prior to or at the same time as a filing in state court.

The department of insurance then convenes a panel of three physicians from a relevant specialty. These doctors review the case and vote on whether or not the evidence supports the conclusion that the defendant failed to meet applicable standards of care. They also vote on whether or not the conduct that the plaintiff is complaining about was a factor in any damages that resulted.

If the panel finds in the physician’s favor, the plaintiff may still proceed with the case in state court. But more often than not, the case is dropped. That’s because the plaintiff’s attorney must now produce an expert witness who will have to contradict the findings of the state insurance board–a process that, needless to say, is difficult and expensive.

Having a panel of one’s peers identify a frivolous lawsuit for what it is? Priceless!

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